62 Ind. App. 489 | Ind. Ct. App. | 1916
This appeal is a companion case to that of Coquillard v. Coquillard (1916), ante 426, 113 N. E. 474, decided at this term. The latter involves items Nos. 3 and 17 of the will of Alexis Coquillard, Sr., and real estate thereby devised. This appeal involves items Nos. 2 and 17 of such will and real estate devised by such items. The questions properly presented on this appeal arise under exceptions reserved to conclusions of law stated on a special finding of facts.
The substance of the finding is as follows: Alexis Coquillard, Sr., died testate in St. Joseph county, seized in fee of certain described real estate in said county, of the probable value of $43,375. His will was-probatéd March 3, 1890. He left surviving him his widow, appellee Maude M. Coquillard, and his two sons, the appellee Alexis Coquillard, Jr., and appellant Joseph A. Coquillard. He left surviving him no other children or descendants. Maude M. Coquillard was born October 23, 1854; Alexis Coquillard, Jr., January 21, 1882; and appellant December 18, 1884. Both sons are unmarried and childless. The estate has been fully settled and the executor discharged, ,and all trusts created by the will have been fully executed. The real estate involved is suburban, subject to heavy taxes and assessments for urban improvements. It yields but little income, and is a source of expense much exceeding the income. Its main value consists in its fitness for subdivision and sale as urban real estate. It is not susceptible of division and cannot be partitioned among the respective
“I give to my said wife” (the lands involved, describing them) “to have and to hold the same unto my said wife during the period of her natural life, and at her death, I give said lands to my children, Alexis Coquillard, Jr., and Joseph A. Coquillard, and such other children as I may have born to me, to be held by them share and share alike, during their respective lives, and on the death of my several children, then I give the remainder of the share of each child in said land in fee simple to such children as my said children may leave surviving them,”
Item No. 17 is as follows:
“I give and bequeath, all the residue of my estate both real and personal to my wife and children, my wife to have one-third and my children two-thirds thereof.”
The first and second conclusions of law are to the effect that appellee, Maude M. Coquillard, owns an estate in,said lands for the period of her natural life, subject to which appellee Alexis and appellant Joseph A. own a life estate therein. The other conclusions of law are as follows: (3) That Alexis Coquillard, Jr., Maude M. Coquillard, and Joseph A. Coquillard each has a fee simple in the undivided one-third of all said real estate, subject first to the life estate of MaudeM. Coquillard, and subject second to the life estate of Alexis Coquillard, Jr., and of Joseph A. Coquillard; that said fee is so vested in each of said parties until the happening of the following contingency, to wit: The death of Alexis Coquillard, Jr., with a child or children surviving him, or the death of Joseph A. Coquillard, with a child or children surviving him. (4) After the death of Maude M.
In order that we may ascertain whether the court’s conclusions of law were correctly stated on the facts found, it becomes necessary to construe items Nos. 2 and 17 of the will involved, and especially respecting the nature and quantity of the various estates thereby created. There were but two children born to testator, each of whom survived
We proceed to consider these questions. The situation is as follows: The testator evidently contemplated that this real estate should be a source of income to the widow during her life, and thereafter to the sons during their respective lives, and that the corpus of the estate should be preserved to the unborn children of the latter. Although he did not specifically so direct, it was probably his intent that the land should be preserved as land until it eventually vested by absolute-title under the will. Under the facts, and by reason of changed conditions which the testator probably did not foresee, his purpose is being frustrated, and is likely to be completely defeated unless the arm of a court exercising chancery powers may be interposed to the end that the lands- may be sold and the various estates and interests therein transferred to the fund. Such changed conditions and the specific facts are to the following effect: At the decease of the testator, the real estate involved was situate near the city of South Bend. It was then regarded as farm land, and was liable to charges only as such. The city, however, has rapidly increased in territorial extent, population and industrial importance. The lands now are urban or suburban to such city. Although yielding but small income, they have become subject to heavy charges for taxes, public improvement assessments and the like. As a consequence, the expense of maintaining the land greatly exceeds the income. As contemplated by the testator, these lands
It cannot be doubted that the power is lodged in chancery in a proper case, where all persons interested and likely to be affected by the decree are before the court, to convert realty into personality, and to direct and supervise reinvestment. Thus, Ridley v. Halliday (1900), 106 Tenn. 607, 61 S. W. 1025, 53 L. R. A. 477, 82 Am. St. 902, involved lands held under a grant for the use of a life tenant with remainder over to successive classes, some of whom, were not in being. It was
In Curtiss v. Brown (1862), 29 Ill. 201, 230, likewise the lands involved were held in trust for the use of a life tenant with contingent interests over to unascertained persons, and, in a situation similar in effect to those presented here, the court, in holding that chancery is clothed with power to grant relief by a sale, uses this language: “Can it be said that the beneficiary of an estate which would bring in the market one hundred thousand dollars, should perish in the street from want, or be sent to the poor-house for support, or that the estate should be totally lost, because there is no power in the courts to relieve against the provisions of the instrument creating this trust? Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust, and do with the fund what he would have dictated had he anticipated the emergency.”
A like conclusion was reached in Hale v. Hale
Each of the cases above cited and discussed involved an estate held in trust for the use of life tenants and contingent remaindermen, including persons not in being. While the fact that an express trust is involved may clothe a court of chancery with jurisdiction to direct its administration in order that its subject-matte» may be preserved and its beneficiaries protected in their rights, yet some other equitable consideration must exist in order that the court may properly exercise its power, by directing the' conversion of trust property into some other form where such eon-version is not specifically authorized by the instrument of trust. In each of such cases, such other consideration consisted in that it was made to appear that the trust property was likely to be lost or that it was subject to great depreciation unless such conversion was directed, and consummated. _ A like consideration exists here, and we do not believe that the mere fact that no express trust is involved stands as a bulwark against action
We can not, however, approve the sixth conclusion. It contemplates the depletion of the fund by paying to the parties to this proceeding the estimated value of their respective life interests. On the investment of the fund, Maude M. Coquillard would be entitled to the net income therefrom during, life. Thereafter, each son would be entitled to the net income from one-half of the fund during the remaining period of his life. The court probably concluded that the payment to each life tenant of the estimated value of his interest in the fund would accomplish the legal equivalent of payment to him of income as indicated, and therefore that the payment of such legal equivalent is justified. If this were true, it will be observed that there is no provision for the restitution of the fund by the accumulation of interest on the residue. In addition, the conclusion is to the effect that such residue should be divided into three equal parts, but there is no specification as to the disposition of the parts. Presumably the court contemplated the payment thereof to the parties to this proceeding as owners of such qualified fee. The stipulation for the protection of the contingent remainder-men is indefinite. The decree entered on the conclusions contains no provision for their protection. On the subject of the distribution of the fund, it is simply to the effect that the costs and expenses be paid, and that the residue of the fund be distributed to the parties to the proceedings in proportion to their several interests.
As we have indicated, it was apparently testator’s intention that the lands involved here should be held, owned and enjoyed as lands under the various estates created therein until title became absolute under the terms of the will. While, as we have said, the courts by virtue of the compelling force of some necessity have the power to encroach upon the intention of the testator, in order that the estate may be preserved and the interests of the beneficiaries protected, such power should not be exercised beyond the scope of influence of such necessity. The separation of the life estates from the estates in remainder by. estimating the values of the former and paying such values to the life tenants is not required here by the exigencies of the situation. To do so would constitute an unnecessary and, therefore, -unauthorized infringement upon the testator’s intention. The payment to the life tenants of the estimated values of their life estates and allowing the residue to accumulate at interest for the benefit of the contingent owners,
In Ruggles v. Tyson, supra, under facts similar to those involved here, it is expressly held, after a full examination of the decided eases, that the court, in the absence of some overpowering necessity, held not to exist there and not shown to exist here, has no power to direct the separation of the life estate from the estate in remainder by estimating the value of the former and paying such value to the life tenant. As is said there, such a course would substitute an expectancy for a certainty. The remaindermen here, on the termination of the life estates, the contingency having happened, are entitled under the will to the undiminished body of the estate. Likewise, the lands being transformed into money, they are entitled to the undiminished body of the fund. The exigency of the situation loses its force on the conversion of the real estate into personalty. To meet such exigency fully, a separation of the life estates from the estates in remainder is not required. As to whether the remaindermen would receive the equivalent of the body of the fund, by the separation of the life estates as indicated and by allowing interest to accumulate on the residue, is speculative.
The judgment is reversed, with instructions to the court to restate its conclusions of law in harmony with this opinion and to decree accordingly.
Note. — Reported' In 113 N. E. 481. Rights and remedies of remaindermen, 14 Am. St. 629. See under (1) 40 Cyc 1664, 1674, 1677; (2) 40 Cyc 1584r-1589; (4) 40 Cyc 1949, 1950; (5) 40 Cyc 1591, 1593; (6), (7), (8), (9) 30 Cyc 178, 182, 190, 199; (11), (12) 16 Cyc 653, 654.